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On December 10, 2015, Bill 109, the Employment and Labour Statute Law Amendment Act, 2015(the “Act“) received Royal Assent. The Act introduces new labour relations provisions for two large groups of employees in Ontario: firefighters and public sector employees. Most significantly, the Act also amends the Workplace Safety and Insurance Act, 1997 (“WSIA“), increasing employer liability (retroactively, in some cases) regarding workers’ compensation claims and survivor death benefits.

More Similar Treatment for Firefighters and Other Unionized Employees

The Act amends the Fire Protection and Prevention Act, 1997 (“FPPA“) to more closely align with theLabour Relations Act, 1995, in the following ways:

introducing protections against unfair labour practices;

introducing mandatory dues for members and non-members of an employees’ association (the so-called “Rand formula”), at the request of the association;

permitting the formation of “closed shop” collective agreements, whereby employers agree to require new employees to join the association and/or pay dues, except in special circumstances (e.g., where the firefighter cannot join the association because he or she is already a member of another union or association, has been discriminated against by the association, has religious objections to being a member, etc.);

creating an expedited arbitral grievance procedure, administered by the Ontario Labour Relations Board (“OLRB“), which may override grievance provisions in the collective agreement; and

allowing the OLRB to either authorize a labour relations officer to inquire into labour-related complaints and attempt to settle the matter, or to determine the matter and impose orders itself.

The amendments to the FPPA have retroactive effect regarding any matters that were outstanding before the OLRB or an arbitrator as of May 28, 2015.

Streamlined Certification during Public Sector Restructuring

The Act also amends the Public Sector Labour Relations Transition Act, 1997 (“PSLRTA“), which applies during the rationalization or restructuring of public sector employers. Generally, when restructuring results in the creation of a new bargaining unit that includes members who were previously represented by more than one union, a vote is required to determine the new bargaining agent. Now, the PSLRTA will no longer require a vote where a prescribed percentage of the affected employees were previously represented by the same union. Instead, that union will become the bargaining agent for all of the members in the new unit. The exact percentage has not yet been determined, but will be more than 60%.

This change does not come into effect until June 10, 2016.

Increased Penalties and Liabilities regarding Workplace Injuries

The amendments to the WSIA are perhaps the most significant changes introduced by the Act:

Employers are prohibited from taking any action to either discourage or prevent an employee from filing a claim for workers’ compensation benefits, or to influence or induce an employee to withdraw or abandon their claim. Prohibited activities include dismissing, disciplining or suspending an employee (or threatening to do so); imposing any other penalty on the employee; or intimidating or coercing the employee with threats, promises, persuasion or any other means. Any employer who engages in such activity may ordered to pay an administrative penalty by the OLRB. In addition, the employer may be found guilty of an offence under the WSIA by a court.

Where individuals or entities are convicted of offences under the WSIA, a court can order heavy penalties. Even before Bill 109, individuals could receive fines of up to $25,000, six months’ imprisonment or both. As a result of Bill 109, the maximum penalty that can be imposed on an entity (such as a corporation) has been increased from $100,000 to $500,000.

For survivor benefits claims relating to injuries on or after January 1, 1998, the “deemed net average earnings” formula has been replaced with a new calculation. As a result of the change, where a deceased worker’s average earnings were less than $15,312.51 before the injury (the statutory minimum), survivor benefits entitlements will not necessarily be based on that amount. Instead, the entitlements can be based on the net average earnings of other workers engaged in the same trade, occupation, profession or calling at the time that the injury first arose. Because these changes are retroactive and the Act allows survivors to request reconsideration of past decisions or refile claims, entitlements for past and future injuries may now increase. Increased entitlements will have a direct impact on Schedule 2 employers, who are individually liable to pay benefits for employees injured at work.

The Workplace Safety and Insurance Board (“WSIB”) will be required to appoint a Fair Practices Commissioner to act as an ombudsman of the WSIB. He or she would have the power to investigate and make recommendations about any complaints about the function of the WSIB.

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